Confrontation, Due process, and the Use of Hearsay: The Florida Evidence Code Was Not Meant to Apply to Sentencing

Hon. William H. Burgess, III, B.C.S.

Accuracy and integrity of fact-finding in criminal sentencing is determined by the burden of proof, the reliability of the underlying evidence, and the opportunity for review and response. The balance of these factors promotes fairness in the individual case and in the overall pattern of sentences over time. Such accuracy is not an absolute in every type of case, however, but is measured against the requirements of the law applicable in the circumstances. Generally, the more severe the potential sanction, the higher the degree of accuracy and reliability of the evidence required to impose the sanction.

Sharp Practices in the Legal Profession

Hon. William H. Burgess, III, B.C.S.

“Pettifogger” 3-D sculpture by Daniel Midholt, based on a design by Stefan Andersson.  Image found at https://www.artstation.com/artwork/zND4d. No claim to copyright.

One of the more vexing aspects of the legal profession is having to deal with attorneys who engage in sharp practice.

“Sharp practice” is a pejorative expression for unscrupulous conduct, undertaken for the purpose of obtaining an unfair advantage over another, that may (or may not) be technically within the applicable law or rules and is considered immoral, unethical or improper. In business dealings, sharp practice often involves activities that come very close to breaking the law.¹ In the legal profession, the greater part of sharp practice occurs on a continuum just beyond the proper bounds of zealous advocacy,² honor,³ and ethics but just short of outright fraud. It is the sort of behavior that no self-respecting lawyer or judge should have to suffer and no properly functioning legal system should tolerate.

Sentence Mitigation: Acceptance of Responsibility

Hon. William H. Burgess, III, B.C.S.

A common and longstanding practice in the trial courts of Florida is to reward defendants who accept responsibility for their actions with lighter sentences than those defendants might otherwise have received. Many prosecutors encourage this form of sentence mitigation and it is not unusual for prosecutors to agree to downward departure sentences for such defendants in appropriate circumstances, usually early in the case. Appellate courts have noted that acceptance of responsibility is an appropriate factor for the court to consider in mitigating a sentence.¹ As a practical matter, early acceptance of responsibility can show actual or potential rehabilitation,² and it furthers the important state interests in judicial efficiency and economy. There is, however, no consensus within the trial and appellate courts as to what “acceptance of responsibility” or “early acceptance of responsibility” is, and so it is an open question as to whether or not this is a valid stand-alone basis for departure below a presumptive minimum sentence.

Sentence Mitigation: Extraordinary Restitution

Hon. William H. Burgess, III, B.C.S.

Ordinarily, the payment or promised payment of restitution is not a basis for downward departure outside of the provisions of sections 921.0026(2)(e) and 921.185, Florida Statutes. A further basis for downward departure may be extraordinary restitution, whether paid before or after a defendant enters a plea, where the defendant demonstrates acceptance of responsibility and makes exceptional efforts to fully remedy the harm caused by the offense. The sentencing laws of Florida do not prohibit downward sentencing departures in such situations and no Florida appellate court has taken up the issue. Nonetheless, such a departure is arguably permitted in appropriate circumstances by the provisions of subsections 921.002(1)(c)¹ and (3).²

Sentence Mitigation: Any Degree of Restitution

Hon. William H. Burgess, III, B.C.S.

Alongside section 921.0026(2)(e), Fla. Stat., is another, older and more general, restitution departure statute. Section 921.185, which has been the law since 1974,¹ provides that

In the imposition of a sentence for any felony or misdemeanor involving property, but not injury or opportunity for injury to persons, the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.²

Comment: The Extreme Duress or Domination Mitigator

Hon. William H. Burgess, III, B.C.S.

It is a statutory mitigating factor under Florida’s Criminal Punishment Code that the defendant acted under extreme duress or under the domination of another person when he or she committed the crime.¹ While listed together, it is quite arguable that domination of another person is a lesser species of, and a much less rigorous standard from, extreme duress.²

Concurrent and Consecutive Sentencing Alternatives in Florida

Hon. William H. Burgess, III, B.C.S.

The basic alternatives for concurrent and consecutive sentencing alternatives under Florida law are as follows:

Discretionary Consecutive Sentencing

Same Indictment, Information, or Affidavit: A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits must serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.¹ The court must affirmatively express its intention that such sentences are to run concurrently; otherwise, they will run consecutively.²

Further Mitigation of a Youthful Offender Sentence Through Completion of a Basic Training “Boot Camp” Program

Hon. William H. Burgess, III, B.C.S.

A way of further mitigation of a Youthful Offender (YO) sentence is through successful completion of a basic training, or “boot camp,” program run by the Department of Corrections (DOC), or a county of the state, authorized under section 958.04(4).¹

DOC is required to develop and implement a basic training program for youthful offenders sentenced or classified by the department as youthful offenders pursuant to chapter 958. The period of time to be served at the basic training program must be no less than 120 days.² The program is required to include marching drills, calisthenics, a rigid dress code, manual labor assignments, physical training with obstacle courses, training in decisionmaking and personal development, high school equivalency diploma and adult basic education courses, and drug counseling and other rehabilitation programs.³

Downward Departure Sentencing Where the Defendant Cooperated With the State to Resolve the Current Offense or Any Other Offense

Hon. William H. Burgess, III, B.C.S.

The sentencing court can mitigate a presumptive prison sentence for which there is no applicable minimum mandatory non-minimum mandatory where the defendant cooperated with the State to resolve the current offense or any other offense.¹ In applying this basis to depart, the court must make a finding based on competent substantial evidence that a crime, or crimes, had been resolved as a result of the defendant’s cooperation.² A resolution implies that a decision or determination has been made, such as the filing of charges or the closing of a case.³ “Cooperation with the State” was originally intended for those situations when there are multiple codefendants and one makes a deal with the State Attorney to assist in the prosecution of the other codefendants, and was not for application to persons who simply cooperated with law enforcement.⁴ Cooperation with the State has since come to mean cooperation with law enforcement, and not just cooperation with the prosecutor.⁵

Downward Departure Sentencing Where the Need for the Payment of Restitution Outweighs the Need for a Prison Sentence

Hon. William H. Burgess, III, B.C.S.

Consistent with the Fourteenth Amendment of the United States Constitution, when deciding what sentence to initially impose, a sentencing judge may consider the entire background of a defendant, including employment history, financial resources, and ability to make restitution.  The Constitution does not preclude a judge from actively using the sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent a judge from showing mercy by reducing the severity of a previously imposed legal sentence.¹

In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution and the defendant’s ability to pay.  Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment.²  The amount of restitution due must be substantial and not be minor.³  The victim must have a “pressing need” to recover the restitution amount specified.⁴